Telecommuting troubles


Telecommuting has become normal – if not the norm – these last 10 months.  Some workplaces remain closed and others have opened only on a rotational basis.  And in addition to these scheduling issues, sometimes employees need to work from home part of the day from time to time.  How is an employee to pay these employees who work part of the day at the regular worksite and part of the day from home (or elsewhere)?

The United States Department of Labor recently issued an opinion letter reminding employers that employee travel time between worksites is compensable.  Thus, non-exempt employees (employees who are paid overtime) may be entitled to payment for their mid-day commute if they work part of the day at the regular worksite and part of the day at home.  Under the federal overtime law, the period of time between an employee’s first work activity and the last, regardless of location, is generally compensable.

So, what does an employer do if an employee needs to work part of the day from home? Regarding salaried employees, they are entitled to their salary wherever they are working.  So if they work part of the day at the regular worksite and part of the day at home, they are to receive their regular salary.  In other words, no pay docking because they spent time commuting from one worksite to another.

For overtime-eligible employees, the opinion letter made it clear that if the employee was given a significant break of time between worksites – where the break in time was their own to do as they liked (that is, more than just the commute) – they are not entitled to payment for their commute.  Thus, if an employee has to leave the regular worksite to attend a parent-teacher conference or a doctor’s appointment and then resumes work when he or she arrives home, the intervening period is not compensable.  On the other hand, if an employee who lives thirty minutes from work, works at the regular worksite from 8 am to noon, and then is required to work from home from 12:30 to 4:30, the mid-day commute probably is compensable. So non-exempt employees who are allowed to work from home for part of the day should be given an adequate break from work for the commute from one worksite to the other.  Ideally, they would be allowed to set their own hours to complete their work day.  We recommend that in these instances, you memorialize the arrangement with the employee so if there is down-the-road second guessing, you will have a contemporaneous record to dispute that.

But perhaps better yet, if an employee needs to work from home for part of the day – for example, to monitor a child’s remote schooling in the afternoon – his or her worksite that day should be from the home office.  Thus, there will not be any confusion about whether travel from one worksite to the other is compensable given that the employee will have only one worksite that day.

Be safe and stay the course. And of course, let us know if we can help.

Thanks, Jack, Elizabeth and Jim

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